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State v Baki [1990] PGNC 31; N890 (3 May 1990)

Unreported National Court Decisions

N890

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. 52/90
STATE
V
GARI BAKI

Waigani

Sheehan J
2-3 May 1990

BAIL - Treasonable Offence Under Section 39 of Criminal Code - Bail Act - Section 42(6) Constitution whether Applicant entitled to bail.

Counsel:

Mr. R. Habuka for Applicant

Mr. G. Toope for State

DECISION

SHEEHAN J: Chnspector Gari Baki has bhas been charged under Section 39(1)(b) of the Criminal Code with a treasonable crime.

It is alleged that as the Officer in Charge of the Special Services Divisiobile Squads) he alerted aned and mobilized those Squads on the night of the 14th March 1990 to assist a co-accused, the former Commissioner of Police to overthrow the Government.

When the accused appeared before the District Court yesterday the Learned Magistrate declined jurisdiction on an Application for Bail on the basis that since the matter was one of treason he was unable to entertain such an application. The application is therefore made before this Court.

Mr. Habuka, Counsel for the accused submitted that an offence under Section 39 of the Criminal Code is one where an accused has a right to bail.

He describes Mr Baki as a Senior Police Officer. He is Commander of the Special Services Division (otherwise known as the Mobile or Riot Squad). He still holds this position and as at yesterday when arrested, was still actively running that part of the Police Operations for the whole of the country. The Court was told that the accused resides at McGregor Barracks, the base of Port Moresby Mobile Squad.

Counsel also submitted that as a Senior Police Officer he is well aware of his duties to the Court, in particular his obligation to appear for trial. Under such circumstances there need be no concern that he will fail to answer bail.

In anticipation of likely opposition from the State to the bail application Counsel advised that since the incident in March the weapons of the Mobile Squad have been transferred away from the McGregor Barracks to the Bomana Police Training School. Thus he felt danger of further breaches of security were unlikely.

The application is opposed by the State. Mr. Toope submitted that bail is not available as of right on a charge of treason and therefore special circumstances would have to be shown by the accused, before this Court could grant bail. He said that the applicant has not shown any such special reasons.

The State submitted that in any case the Court should refuse to exercise its discretion on bail in favour of the accused, because in fact a real risk to the security of the country still remains. The State contends that there is still a risk of further dissident action, and as the accused is well placed to assemble and control disciplined forces he should not be granted bail at this time.

The Assistant Commissioner Mr Mugugia gave evidence outlining the events leading to the charge against the accused. He stated that in his opinion there still remains a security risk if the accused were to be granted bail.

No evidence was called in support of the accused’s application.

It is not the Court’s task at this stage to assess the validity of evidence. This is an application for bail. It is not a trial. Such information as has been given to the Court is not offered by way of proof of any matter but is offered to show the nature of the case. It is intended to indicate that the State has a case relevant to the charge.

Dealing with the submissions: the first matter is whether the accused, facing the charge of a treasonable crime, is entitled bail or whether that offence falls within the exceptions of Section 42(6) of the Constitution. That Section reads:

“A person arrested or detained for an offence (other than treason or wilful murder as defined by an act of Parliament) is entitled to bail at all times from an arrest or detention and to acquittal or conviction unless the interests of justice otherwise require.”

Mr. Toope rightly pointed out that treason and treasonable crimes are the most serious offences under the Criminal Code. He submitted that the offence the accused is charged with under Section 39 is treason. The State said that Parliament has treated both offences, those under Section 37 and 39 as the same, except for penalty. As well, a treasonable crime carries the same penalty as wilful murder, the other exception to the right to bail.

While this Court has a discretion on the granting of bail in any case, the consequences of adopting the view of the State or the accused are significant. If the State is right, and a charge under Section 39 is treason within the meaning of Section 42(6) of the Constitution, then it is up to the accused to show significant and exceptional circumstances which merit his being granted bail.

If the view of the Applicant/accused is to be accepted then he is, in the words of Section 42(6), entitled to bail unless it is shown to be contrary to the interests of justice.

The State has submitted that the proper course for this court is to interpret Section 39 as prescribing an offence of treason, but I can only read Section 42(6) as it stands. It says that treason is an offence defined by an Act of Parliament. In the Criminal Code only an offence under Section 37 is defined as a “crime of treason”. An offence under Section 39 is by contrast defined only as an “offence” carrying a penalty of life imprisonment. I am therefore satisfied that a person charged under Section 39 is entitled to bail unless it can be shown that that bail is in contrary to the interest of justice.

That does not mean that bail is readily available or lightly granted. The matters raised in Section 9 of the bail act, in particular the possibility of interference with the witnesses, the possession of firearms during the alleged offence all require to be considered. Some have been raised in this application though not seriously pressed by the State as reasons for a refusal of bail. I am satisfied that in this case those matters are not automatic reasons for refusal of bail.

But this is a most serious charge. An allegation of an attack on the Constitution itself. The State contends that there is a continuing risk to the security of the country if the accused is granted bail. This has been put forward by a very senior police officer and therefore must be given very serious consideration.

But without doubting the sincerity of Mr. Mugugia’s concerns I have to say that on the information before me I do not see that as regards this accused the security risk is as high as it might be in other cases.

The accused is not said to be the prime mover of this offence. He is still holding his position as Officer in Charge of the Mobile Squad for the whole of the country today and has continued to do so throughout the investigations that have lead to this charge, some six weeks after the alleged offence.

I am told other members of the Mobile Squad have been distributed around the country as a move in the interests of security, yet this accused has remained at his post as a fully operational officer, and in control of these very forces he is alleged to have used in a treasonable way.

In the circumstances I consider that the accused should be granted bail subject to conditions; to ensure his attendance at trial, to ensure non-interference with witnesses and with measures towards the interests of security. The Court will require conditions as follows -

(1) &##160;; a cash cash bail oail of two and a half thousand kina (K2,500) together with sureties of one thousand kina (K1000.00) cash bail each;

(2) ҈&&#160 accused will will surrender his passport tort to the the Registrar of the National Court within 24 hours.

(3) ټ&##160; the accused used will move from his residence from the McGregor Barracks and notd not reside within any Barracks of the PoForce, Defence Force or Discipline forces of the State; and shall move to a residence approapproved by the National Court and not remove himself elsewhere than those premises without the permission of the National Court first had and obtained.

(4) & the acce accused shall not be entering any licensed premises whether hotels or clubs during the term of this and

(5) finally the accused shall not discuss any maty matters relating to the offence with which he has been charged with any State witness.

Lawyer for the State: Public Proscutor

Lawyer for Applicant: Karkes Lawyers.